Do Van Manh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 521/2022

[2026] HKCFI 1441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 521 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 23 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 17 June 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 April 2021 (the “Notice”) refusing his application for non-refoulement protection.

2.The Applicant is a Vietnamese national, aged 32. He was arrested by the police on 21 December 2020 for theft.  He claimed to have entered Mainland China from Vietnam and from there he sneaked into Hong Kong.  On 28 January 2021, he filed a claim for non-refoulement protection.  His claim was rejected by the Director.  His appeal against the Director’s decision was dismissed by the Board.  He now applies for leave to apply for judicial review of the Board’s Decision.  His personal background, the factual background leading to the present application, the basis of his previous claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.   In gist, he claims he will be harmed or killed by a moneylender for being unable to repay his debt owing to the moneylender.

The Applicant’s case

3.The Applicant’s case is that in June 2018 he borrowed a loan of 800 million Vietnamese Dong (“VND”) from a moneylender at a monthly interest of VND10 million for the purpose of starting a game centre in Hai Phong.  The business generated a monthly profit of VND 15 million.  He was able to pay interest until February 2020 when the government ordered him to close down his business because of the outbreak of Covid-19.  When he was unable to pay interest in March 2020, the moneylender threatened to harm or even to kill him.  Thereafter, the moneylender chased him by telephone calls and threatened him with death.  In July 2020, the moneylender and five gangsters demanded him to repay the principal and interest within two months and administered a death threat.  Two months later, the moneylender turned up at his home alone.  This time, he demanded the Applicant to traffic in dangerous drugs to set off his debt.  The Applicant refused and asked for extension of time to pay.  The moneylender gave him a death threat and left.  To avoid the moneylender, the Applicant moved to live with his friend in Ho Chi Ming City in October 2020.  On 28 October 2020, he sneaked into Mainland China and then into Hong Kong.

The finding of the Board

4.The Applicant’s case is founded on his own bare assertions.  It is unsupported by objective proof, documentary or otherwise.  He allegedly had run his game centre for one and half years, but could not even produce one picture of his game centre.  He never reported the threat to the police. 

5.The Board found multiple significant discrepancies in his evidence between his non-refoulement claim form (“NCF”) and his testimony before the Board.  In his NCF, he said that the moneylender came to his home alone in September 2020 and demanded him to traffic in drugs to set off his debt.  But at the hearing, he told the Board that he was not at home when the moneylender came to chase for payment.  On his own case, that was the moneylender’s last attempt to collect the debt and it triggered his flight to Ho Chi Ming City.  The Board considered that under these circumstances he would not have mistaken about that event, if he had truly experienced it.

6.The Applicant further said in his NCF that he lived with his friend for one month in Ho Chi Ming City.  But at the hearing he could not tell the name of his friend.  He explained that he came to know this friend for one to two months via internet games.  As this friend allegedly accommodated him at his difficult time, the Board considered the friend must be a close one and found it implausible that the Applicant would not be able to recall his name, if he had ever sought help from him.

7.The Board found he was not a witness of truth.  It rejected his case that he had incurred a loan from the moneylender and had been threatened with death.  On such finding, it would have been sufficient for the Board to find the Applicant had failed to establish the factual basis to support his claim for protection.  However, the Board did not do so.  It went on to assess the Applicant’s claims on the basis of the factual case as he asserted.

8.In respect of Torture Risk ground, it found the ill-treatment allegedly suffered by the Applicant did not amount to ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance as there was no evidence to suggest that it was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

9.On that evidence, the Board did not consider he would face the kind of risk contemplated under BOR 2 Risk ground nor was there a real or genuine risk that he would be subject to torture, cruel, degrading treatment or punishment under BOR 3 or Persecution Risk grounds, if refouled.  Furthermore, the feared ill-treatment could not be on account of a reason under the 1951 Convention relating to the status of refugee and its 1967 Protocol.

10.The Applicant maintained that state protection was not accessible because it was his own fault in defaulting repayment of the loan and that the police only assist people who offer bribes.  On the basis of authoritative and credible country of origin information (“COI”), the Board found adequate state protection available.  It was the Applicant’s own choice not to seek protection from the police.

11.As for his claim that he could not avoid the moneylender by internal relocation because the moneylender could locate him, he could provide no basis for his assertion.  He admitted it was his own speculation.  In any event, in view of the Board’s findings above, the issue of internal relocation did not arise.

12.For the above reasons, the Board found the Applicant failed on all applicable grounds and dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

13.The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a claim for non‑refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

14.At the hearing, after the legal principles applicable to judicial review had been explained to them, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  However, he had advanced the following three grounds in his supporting affirmation:

15.First, he submitted that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent.  He said these people disregarded the law and were willing to kill to satisfy their anger and ferocity.  This is a direct challenge of the Board’s finding of fact that he had failed to discharge the burden of proving his entitlement to protection under any of the four applicable grounds under the Unified Screening Mechanism (“USM”), which is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.  On that finding, his life would not be at risk of any of the proscribed harm, if returned to Vietnam.

16.Second, he disagreed with the Director’s suggestion that he could relocate to live in other location to avoid the gangsters because of his health, personality and that the disadvantage he would suffer in the labour market.  The Board did not make any such finding.  After finding that the Applicant did not have a well-founded fear of persecution in Vietnam, the Board held in paragraph 83 of its Decision that the question of internal relocation did not arise.

17.Lastly, he claimed that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and gangsters to find him out and harm him.  This argument is also related to feasibility of internal relocation.  For reasons as explained above, internal relocation is a non-issue.  This ground is irrelevant.

18.There is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed.

Overall scrutiny

19.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  On the evidence, the Board found the Applicant was not a witness of truth.  It rejected his case.  Despite that, it went on to assess his claims on the basis of the factual case as he asserted.  Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as he asserted and some further finding of fact, the Board found he had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

20.For the above reasons, the Applicant’s leave application is refused.

Dated the 13^th day of March 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1